U.S. v. Arthurs

• Decision Date: 07 November 1995
• Docket Number: No. 94-1466,94-1466
• Citation: 73 F.3d 444
• Parties: UNITED STATES, Appellee, v. Lloyd ARTHURS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 444

73 F.3d 444

UNITED STATES, Appellee, v. Lloyd ARTHURS, Defendant, Appellant.

No. 94-1466.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 1995.

Decided Jan. 17, 1996.

Ramon L. Garay-Medina with whom Ramon L. Garay-Medina, was on brief for appellant.

Warren Vazquez, Assistant United States Attorney, Guillermo Gil, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for the United States.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, LYNCH, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Defendant-appellant Lloyd Arthurs was convicted of possessing with the intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and importing cocaine into the customs territory of the United States from a place outside thereof, in violation of 21 U.S.C Sec. 952(a). ¹ He was sentenced to sixty-three months of imprisonment, four years of supervised release, and a $100 fine. He appeals from the judgment of conviction, entered in the United States District Court for the District of Puerto Rico following a three-day jury trial.

I. Facts

Arthurs, a twenty-three year-old citizen of Jamaica, was a crew member aboard the cruise ship, Windward. He worked two shifts, washing pots from early morning to late afternoon and cleaning cabins in the evenings.

On December 5, 1993, the Windward arrived at the port of San Juan, having traveled there from the Virgin Islands. The government's evidence, which was largely uncontested by the defense, was that the Customs Service had caught defendant with approximately two kilograms of cocaine as he was exiting the ship. Customs agents had been informed that persons aboard would attempt to smuggle narcotics into San Juan and were inspecting disembarking passengers and crew members. An agent noticed that Arthurs appeared bulky in the mid-section. Upon secondary inspection, six packages of cocaine were found loosely concealed under Arthurs' clothing.

The defense's case was provided principally by defendant's own testimony. Because Arthurs raises a duress claim, infra, we summarize the testimony he provided in support of that claim, testimony that the government disputes. Arthurs stated that at the time of his arrest, he had been leaving the ship in order to return two videotapes to a video club where he had rented them a week earlier. The passageway of the ship led to the upper level of a pier. There, according to defendant, a stranger pulled him into a public bathroom, where another man was waiting. No one else was inside. Defendant testified that the men pushed him up against a wall and "demand[ed] I take come [sic] some packages out to the street, and the only way could get out of the bathroom is to cooperate with them or I would be a dead man. And the gentleman was very angry, the one was in the bathroom was very angry." Two packages were placed loosely around his waist, and four were placed in his pockets. Defendant testified that the men then let him out of the bathroom, and he did not see them again.

Defendant, being "very panic," proceeded immediately to Customs and "requested search from the Customs two times." When told that he was under arrest, "I started to give [the officer] my statement and he refused, and arrested me...." A subsequent search of defendant's cabin yielded no other drugs.

Defendant raises two issues on appeal: 1) the district court erred in denying his request for a translator of his testimony to ensure that the Puerto Rican jury understood his English, spoken with a Jamaican accent, and 2) it erred in refusing as a matter of law to instruct the jury on a duress defense. Defendant claims that these errors deprived him of his constitutional rights to due process, adequate legal representation, a jury trial, and a fair and impartial trial.

II. Lack of a Translator of Defendant's Testimony

Defendant asserts on appeal, and the government concedes, that he requested a translator apparently to translate his Jamaican English into a form of English more easily understood by the jury. This request does not appear on the record now before us, nor does the record show that the court denied a request of such a nature. There also is no indication in the record of a defense objection to the court's alleged refusal to appoint a translator. Several times during the trial, however, defense counsel referred to the possibility that the jury might have difficulty understanding defendant's English. ² On appeal defense counsel also suggests that defendant, who neither reads nor writes, did not understand some of the questions put to him when he testified.

Normally the absence of any record of defendant's request for a translator would be fatal to the claim on appeal. ³ However, the government conceded at oral argument that such a request was made in a chambers conference. We shall, therefore, consider the matter, although, as no objection to the court's refusal to grant the request appears ever to have been made, we review for plain error only. See United States v. Olano, 507 U.S. 725, 736-37, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); see also United States v. Taylor, 54 F.3d 967, 972-973 (1st Cir.1995) (discussing "raise-or-waive" rule and exception for plain error).

The district court's refusal to provide a translator for defendant's testimony was not plain error. The district judge, who heard the defendant speak, had considerable discretion in these circumstances to determine if Arthurs' English testimony was intelligible to the jury. Cf. Gonzalez v. United States, 33 F.3d 1047, 1050-1051 (9th Cir.1994); United States v. Garcia, 818 F.2d 136, 142 (1st Cir.1987). ⁴ Defendant's counsel at no time asserted on the trial record that defendant suffered from comprehension problems so severe as to deny him due process or the right to a fair and impartial trial. It appears from our own review of the record that defendant answered for the most part responsively, although he occasionally misunderstood and needed to have a question repeated. From what we can ascertain, we cannot say that his language problems were of such a magnitude as to have deprived him of a fair trial.

The absence of an objection on this ground left the district court without notice of any claim that language difficulties bothered defendant to the extent now claimed on appeal. Had the court been so notified, it could have made further inquiry and, if necessary, taken steps to deal with the alleged problem. We cannot say, on the basis of the record now before us, that the court committed any error, much less one that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (citation omitted).

III. Denial of a Jury Instruction on the Duress Defense

At the outset, the district court denied a government motion in limine to prevent defendant from introducing evidence of duress. After the close of evidence, however, the district court did not find defendant's testimony of duress sufficient to require submitting a special duress or coercion instruction to the jury, as defense counsel had requested in writing and orally during a pre-charge colloquy with the court.

Defense counsel did not thereafter object to the district court's omission of a duress instruction from its charge before the jury retired to consider its verdict, as Rule 30 of the Federal Rules of Criminal Procedure directs. ⁵ Our precedent requires strict compliance with this rule:

"As we have repeatedly held, Fed.R.Crim.P. 30 means what it says. A party may not claim error in the judge's charge to the jury unless that party 'objects' after the judge gives the charge but before the 'jury retires,' and, when objecting the party must 'stat[e] ... distinctly the matter to which that party objects and the grounds of that objection."

United States v. O'Connor, 28 F.3d 218, 221 (1st Cir.1994) (quoting United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991)). Rule 30 is not satisfied by counsel's pre-charge colloquy with the court or written explanation of grounds alone, nor even by a post-charge attempt to incorporate by reference earlier arguments. See United States v. Gabriele, 63 F.3d 61, 66 & nn. 4, 7 (1st Cir.1995); Wilkinson, 926 F.2d at 26-27; United States v. Coady, 809 F.2d 119, 123 (1st Cir.1987) ("That counsel may have discoursed upon the nature of his theory at some time prior to the giving of the charge will not excuse noncompliance with the express mandates of Rule 30."). Strict compliance with the rule "enables the trial judge intelligently to appraise the soundness of the position asserted, and if need be, correct the charge to avoid injustice." Coady, 809 F.2d at 123.

After its charge, the district court does not appear to have affirmatively invited counsel to register any objections they then had to the instructions it had just given. However, Rule 30 places the burden of compliance on the parties. Cf. id. Counsel should have spoken out, requesting an opportunity to register objections out of the jury's hearing. Absent a post-charge objection, we review the district court's denial of a duress instruction only for plain error. See Olano, at 736-37, 113 S.Ct. at 1779; Gabriele, 63 F.3d at 66.

A duress defense has three elements: 1) an immediate threat of serious bodily injury or death, 2) a well-grounded belief that the threat will be carried out, and 3) no reasonable opportunity to escape or otherwise to frustrate the threat. See United States v. Amparo, 961 F.2d 288, 291 (1st Cir.), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).

To justify a duress instruction, a defendant must produce sufficient evidence to support a finding of duress. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54 (1988) ("As a general pro...